WHY PMSCs?

One of the most prominent features of the evolution of private contracting is the massive expansion of the private military and security industry and the alarming increase of its use primarily by West European and North American countries. Certainly, the last two decades have witnessed a strong shift towards the privatization of war and security. On the one hand, since the end of the Cold War States have relied to a much greater extent than before on private contractors to support their military and stability operations abroad and to provide security at the domestic level. On the other hand, the role played by these non-state actors in conflict and risk situations has evolved greatly: with a minimum of public debate, functions traditionally performed by national armies and public authorities –such as the interrogation of detainees, protection of military assets and diplomatic personnel, collection of intelligence, and running of prisons and other correctional facilities- have increasingly been contracted out to private military and security companies (PMSCs). In some cases, States have outsourced these functions because they lack the manpower or the technical expertise to undertake them. Yet to be clear, it is not only States which are pursuing thus policy; in the field of security-related services, non-governmental organizations, transnational corporations and international organizations like the United Nations and the NATO are also among the clients of PMSCs.

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Generally, PMSCs are often praised for their efficiency, their rapid mobilization capacity, and the apparent low-costs of their employment as compared to national armed forces and international peacekeeping operations. At present, however, the use and activities of PMSCs have also become a source of several concerns and call for analysis. On the one hand, the massive recourse to private contractors for security and military purposes as well as the human rights violations associated with some of them has generated a debate about the sort of functions that ought to or ought not to be performed by PMSCs. The traditional principle of the State monopoly on the use of force and the implicit notion of “inherently State functions” are at the heart of this debate. On the other hand, the apparent lack of appropriate legal consequences for human rights violations involving private contractors has led to claims of lack of accountability of PMSCs and their personnel. Key legal questions have arisen in this regard, inter alia, what it is the legal status and the legal regime applying to PMSCs and their personnel under international and national law; what are the responsibilities of States linked to them; and what are the jurisdictional avenues for prosecuting PMSCs and seeking redress for victims.

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While at present there is no internationally agreed definition of what constitutes a “private military/security company”, research and scholarly studies patently reported that private contractors deployed in conflict and other hostile situations provided a broad spectrum of both military and security services and that a distinction between private security companies (PSCs) and private military companies (PMCs) is often blurred. At the same time, however, the class of services provided by private contractors at the domestic level is frequently categorized as of security nature.

Therefore, for the purpose of this blog the term “private military/security companies” seems to capture better the essence of the activities commonly performed by private contractors both at the international and national level. In any case, in terms of the debate on control and regulation of PMSCs –particularly the delimitation of those inherently State functions that cannot be outsourced by States- a distinction between security and military services can do be convenient. In this regard, the 2010 Draft Convention on PMSCspresented by the United Nations Working Group on the use of mercenaries and PMSCs has proposed the following definition for military and security services respectively:

“Military services: refers to specialized services related to military actions, including strategic planning, intelligence, investigation, land, sea or air reconnaissance, flight operations of any type, manned or unmanned, satellite surveillance, any kind of knowledge transfer with military applications, material and technical support to armed forces and other related activities.

Security services: refers to armed guarding or protection of buildings, installations, property and people, any kind of knowledge transfer with security and policing applications, development and implementation of informational security measures and other related activities”